by Robin Cook
“In Jack’s second career as a medical examiner, he’s had a lot of courtroom experience. He travels all over as an expert witness for the New York ME’s office. He’s told me he enjoys it. He strikes me as very inventive, although on the negative side, an inveterate risk-taker. As despondent as you are about how things are going, maybe his impromptu inventiveness could be helpful.”
“I truly can’t see how.”
“I can’t either, and I suppose that’s why I hadn’t suggested it before.”
“Well, he’s your brother. I’ll leave that decision up to you.”
“I’ll think about it,” Alexis said. Then she checked her watch. “We don’t have a lot of time. Are you sure you don’t want to grab something to eat?”
“You know, now that I’ve gotten out of that courtroom, my stomach has been growling. I could use a quick sandwich.”
After they stood up, Craig enveloped his wife in a sustained hug. He truly appreciated her support and felt even more embarrassed about his behavior prior to his legal problems. She was right about his ability to compartmentalize. He’d totally separated his professional life and his family life and put far too much emphasis on the professional. He prayed he’d have a chance to balance the two.
4
BOSTON, MASSACHUSETTS
Monday, June 5, 2006
1:30 p.m.
All rise,” the court officer called.
Judge Marvin Davidson whisked out of his chambers with a swirl of black robes at the exact moment the second hand of the wall-mounted, institutional clock swept past the number twelve.
The sun had moved in its diurnal trajectory, and some of the shades over the story-tall windows above the six-foot-high oak paneling had been raised. A bit of cityscape could be seen, as well as a tiny patch of blue sky.
“Be seated,” the court officer called out after the judge had done so.
“I trust you all had a refreshing bite to eat,” the judge said to the jury. Most jurors nodded.
“And as I instructed, I trust no one talked about the case in any capacity.” All the jurors shook their heads in agreement.
“Good. Now you will hear the opening statement by the defense. Mr. Bingham.”
Randolph took his time standing up, walking to the podium, and placing his notes on the angled surface. He then adjusted his dark blue suit jacket and the cuffs of his white shirt. He stood ramrod-straight, using every inch of his six-foot-plus height while his long-fingered hands gently enveloped the lectern’s sides. Every single silver hair on his scalp knew its assigned place and had been snipped to a predetermined length. His necktie, with its sprinkling of Harvard veritas shields set in a crimson field, was tied to perfection. He was the picture of inbred, refined elegance and stood out in the middle of the shabby courtroom like a prince in a brothel.
From Craig’s perspective, he couldn’t help but be impressed, and for a few moments he’d gone back to thinking that the contrast with Tony Fasano might be favorable. Randolph was the father figure, the president, the diplomat. Who wouldn’t want to trust him? But then Craig’s eyes moved to the jury and went from the muscular fireman to the plumber’s assistant and on to the inconvenienced businessmen. Every face reflected a reflex ennui that was the opposite of their reaction to Tony Fasano, and even before Randolph opened his mouth, Craig’s brief flash of optimism disappeared like a drop of water on a sizzling fry pan.
Yet this rapid flip-flop realization wasn’t all bad. It gave validation to Alexis’s advice about mind-set, so Craig closed his eyes and conjured up the image of Patience Stanhope in her bed when he and Leona charged into the woman’s bedroom. He thought about how shocked he’d been by her cyanosis, how quickly he’d reacted, and everything he’d done from that moment until it was apparent she was not going to be resuscitated. Over the course of the last eight months he’d gone over the sequence numerous times, and although on a few other cases over the years he could second-guess himself and believe he should have done something slightly different, with Patience Stanhope he’d done everything absolutely by the book. He was confident that if he were confronted with the same situation that very day, he would not do anything differently. There had been no negligence. Of that he was absolutely certain.
“Ladies and gentlemen of the jury,” Randolph said slowly and precisely. “You have heard a unique opening statement from someone who admits he has had no experience in trying medical malpractice cases. It was a tour de force with clever, initial self-deprecations that made you smile. I didn’t smile because I saw the ploy for what it was. I will not debase you with such oratory tricks. I will merely speak the truth, which I’m certain you will come to understand when you hear the testimony that the defense will present. In contrast to the opposing attorney, I have had more than thirty years defending our good doctors and hospitals, and in all the trials I have participated in I have never heard an opening statement quite like Mr. Fasano’s, which in many ways was an unfair character assassination of my client, Dr. Craig Bowman.”
“Objection,” Tony shouted, leaping to his feet. “Argumentative and inflammatory.”
“Your Honor,” Randolph interjected. With annoyance, he made a small, dismissive gesture with one hand toward Tony as if shooing away gnats. “May I approach the bench?”
“By all means,” Judge Davidson snapped in return. He waved for the attorneys to come to the sidebar.
Randolph strode up to the side of the judge’s bench with Tony fast on his heels. “Your Honor, Mr. Fasano was allowed wide discretion in his opening statement. I expect the same courtesy.”
“I only described what I intend to substantiate with witnesses, which is what an opening statement is supposed to prove. And you, Mr. Bingham, objected about every ten seconds, interrupting my train of thought.”
“Good God!” Judge Davidson complained. “This isn’t a murder-one trial,” the judge said. “It’s a medical malpractice trial. We’re not even through the opening statements and you’re at each other’s throats. At this rate, we’ll be here for months.” He allowed what he said to sink in for a beat. “Let this be a warning to you both. I want to move things along. Hear me? Each of you is experienced enough to know what is appropriate and what the other will tolerate, so rein yourselves in and stick to the facts.
“Now to the objection at hand. Mr. Bingham, what’s good for the goose is good for the gander. You did object to Mr. Fasano being inflammatory. He has every right to object to you doing the same. Mr. Fasano, it is true you were given wide discretion, and God help you and your client if your testimony doesn’t support your allegations. Mr. Bingham will be allowed the same discretion. Do I make myself clear?”
Both attorneys dutifully nodded.
“Fine! Let’s continue.”
Randolph returned to the podium. Fasano sat back down at the plaintiff’s table.
“Objection sustained,” Judge Davidson said for the court reporter’s benefit. “Continue.”
“Ladies and gentlemen of the jury,” Randolph said, “motivation is not usually part of medical malpractice proceedings. What is normally at issue is whether the standard of care has been met such that the doctor possessed and used that degree of learning and skill in treating the patient’s condition that a reasonably competent doctor would employ in the same circumstance. You will note that in his opening statement, Mr. Fasano said nothing about his experts suggesting that Dr. Bowman did not use his learning and skill appropriately. Instead, Mr. Fasano must bring in the concept of motivation to get his allegation of negligence to be substantive. And the reason for this, as our experts will testify, is that from the instant Dr. Bowman knew the gravity of Patience Stanhope’s condition, he acted with commendable speed and skill, and did everything possible to save the patient’s life.”
Alexis found herself nodding in agreement as she listened to Randolph. She liked what she was hearing and thought he was doing a good job. Her eyes switched to Craig. He was at least sitting up straight. She wished she cou
ld see his face from where she was sitting, but it was impossible. Her eyes then went to the jury and her evaluation of Randolph’s performance began to erode. There was something about the jurors’ posture that was different from when Tony Fasano was speaking. They seemed too relaxed, as if Randolph wasn’t sufficiently engaging their attention. Then, as if to confirm her fears, the plumbing assistant gave a long, sustained yawn, which spread through most of the others.
“The burden of proof lies with the plaintiff,” Randolph continued. “It is the defense’s job to rebut the plaintiff’s allegation and the testimony of the plaintiff’s witnesses. Since Mr. Fasano had indicated that motivation is his key stratagem, we, the defense, must adjust accordingly and present with our witnesses an affirmation of Dr. Bowman’s commitment and sacrifice throughout his entire life, beginning with a doctor kit given to him at age four, to be the best doctor and to practice the best medicine.”
“Objection,” Tony said. “Dr. Bowman’s commitment and sacrifice during his training has no bearing on the particular case at hand.”
“Mr. Bingham,” Judge Davidson asked. “Will your witnesses’ testimony relate Dr. Bowman’s commitment and sacrifice to Patience Stanhope?”
“Absolutely, Your Honor.”
“Objection overruled,” Judge Davidson said. “Proceed.”
“But before I outline how we plan to present our case, I’d like to say a word about Dr. Bowman’s practice. Mr. Fasano described it as ‘concierge medicine’ and suggested the term had a pejorative connotation.”
Alexis glanced back at the jury. She was concerned about Randolph’s syntax and wondered how many of the jurors could relate to the words connotation and pejorative, and, of those who could, how many would think they were pretentious. What she saw was not encouraging: The jury looked like wax figures.
“However,” Randolph said, raising one of his long, manicured fingers into the air as though he was lecturing a group of naughty children. “The meaning of the word concierge in its usual sense is help or service, with no negative connotation whatsoever. And indeed that is the reason it has been associated with retainer medicine, which requires a small, up-front fee. You will hear testimony from a number of physicians that the rationale for such a practice format is to spend more time with the patient during appointments and during referrals so the patient enjoys the kind of medicine all of us laypeople would like to experience. You will hear testimony that the kind of medicine practiced in a concierge practice is the kind of medicine all doctors learn during medical school. You will also hear that its origins have come from the economic bind in traditional-practice settings that forces physicians to crowd more and more patients into a given hour to keep revenues above costs. Let me give you some examples.”
It was reflex rather than conscious thought that propelled Alexis to a standing position in reaction to Randolph’s foray into dull medical economics. Excusing herself, she moved laterally along the churchlike pew toward the central aisle. Her eyes briefly met those of the man who was dressed identically to Tony Fasano. He was sitting in the aisle seat directly across as Alexis exited her row. His expression and unblinking stare unnerved her but then immediately dropped out of her consciousness. She headed to the door to the hall and opened it, trying to be as quiet as possible. Unfortunately, the heavy door made a click heard all around the courtroom. Momentarily mortified, she stepped out into the hall and then walked out into the large elevator lobby. Sitting on a leather-covered bench, she rummaged in her shoulder bag for her cell phone and turned it on.
Realizing she had poor reception, she took the elevator down to the ground floor and walked back out into the sunlight. After being indoors, she had to squint. To avoid the smog of cigarette smoke from the nicotine addicts sprinkled around the courthouse entrance, she walked a distance until she was by herself. Leaning on a railing with her bag over her shoulder and tucked safely under her arm, she scrolled through her phone’s electronic address book until she came to her older brother’s entries. Since it was after two in the afternoon, she used his work number at Office of the Chief Medical Examiner’s in New York City.
As the call went through, Alexis tried to remember exactly when the last occasion had been that she’d called and talked with Jack. She couldn’t remember but knew it had to have been months, maybe as much as half a year ago, as much as she’d been consumed by her family’s disarray. Yet even prior to that there’d been only intermittent, haphazard contact, which was unfortunate because she and Jack had been extremely close as children. Life had not been easy for Jack, specifically fifteen years previously when his wife and two daughters, aged ten and eleven, had been killed in a commuter plane crash. They had been on their way home to Champaign, Illinois, after having visited Jack in Chicago, where he was retraining in forensic pathology. When Jack moved east to New York City, ten years previously, Alexis had been hopeful they would see a lot of each other. But it hadn’t happened because of what she’d said to Craig earlier. Jack was still struggling to get over his tragedy, and Alexis’s children were a painful reminder. Alexis’s oldest daughter, Tracy, had been born one month after Jack’s tragic loss.
“This better be important, Soldano,” Jack said without so much as a hello after answering the phone. “I’m not getting anything done.”
“Jack, it’s Alexis.”
“Alexis! Sorry! I thought it was my NYPD detective friend. He’s just called me several times on his cell from his car but keeps getting cut off.”
“Is it a call you need to take? I can call you back.”
“No, I can talk to him later. I know what he wants, which we don’t have yet. We have him well trained, so he’s enamored with the power of forensics, but he wants results overnight. What’s up? It’s good to hear from you. I never expected it would be you at this hour.”
“I’m sorry I’m calling while you’re at work. Is this a good time to chat, apart from your detective friend trying to get ahold of you?”
“Well, to be honest, I do have a waiting room full of patients. But I suppose they can wait since they’re all dead.”
Alexis giggled. Jack’s new humorously sarcastic persona, which she’d experienced only a few times, was a marked change from his prior self. He’d always had a sense of humor, but in the past it was more subtle and frankly rather dry.
“Is everything okay up there in Beantown? It’s not like you to call during the day. Where are you, at work at the hospital?”
“Actually, I’m not. You know, I’m embarrassed to say I can’t remember the last time we spoke.”
“It was about eight months ago. You called me to tell me Craig had come back home. As I recall, I wasn’t all that optimistic about things working out and said so. Craig has always struck me as not much of a family man. I remember saying he was someone who made a great physician but not much of a father or husband. I’m sorry if that hurt your feelings.”
“Your comments surprised me, but you didn’t hurt my feelings.”
“When I didn’t hear back from you, I thought I had.”
You could have called me if you’d thought as much, Alexis thought but did not say. Instead, she said, “Since you asked, things are not so good up here in Beantown.”
“I’m sorry to hear that. I hope my prophecy hasn’t come to pass.”
“No, Craig is still at home. I don’t think I mentioned last time we talked that Craig has been sued for malpractice.”
“No, you didn’t mention that tidbit. Was this after he’d come back or before?”
“It’s been a difficult time for all of us,” Alexis said, ignoring Jack’s question.
“I can imagine. What’s hard to imagine is him getting sued with as much of himself as he directs toward his patients. Then again, in the current medical-legal malpractice environment, everybody is at risk.”
“The trial has just started today.”
“Well, wish him good luck. Knowing his need to be number one in the class, I imagine he’s taken what amoun
ts to public censure pretty hard.”
“That’s an understatement. Being sued for malpractice is difficult for all doctors, but for Craig it is especially tough in terms of his self-esteem. He put all his eggs in one basket. The last eight months have been pure hell for him.”
“How has it been for you and the girls?”
“It’s not been easy, but we have been managing, except perhaps for Tracy. Age fifteen can be a tough time, and this added stress has made it worse. She can’t quite come to grips with forgiving Craig for walking out on us when he did and carrying on with one of his secretaries. Her image of men has taken a beating. Meghan and Christina have taken it more or less in stride. As you know, Craig never had the time to involve himself too much in their lives.”
“Are things okay between you and Craig? Are things back to normal?”
“Our relationship has been in a holding pattern, with him sleeping in the guest room until this malpractice mess has been resolved. I’m enough of a realist to know his plate is pretty full at the moment. It’s brimming, in fact, which is why I’m calling.”
There was a pause. Alexis took a breath.
“If you need some money, it’s not a problem,” Jack offered.
“No, money is not an issue. The problem is that there is a good chance Craig will lose the case. And with the public censure, as you called it, I think there is a good chance he’ll fall apart, meaning, in the vernacular, a nervous breakdown. And if that happens, I really don’t see reconciliation happening. I think it would be a tragedy for Craig, for me, and for the girls.”
“So you still love him?”
“That’s a difficult question. Put it this way: He’s the father of my daughters. I know he hasn’t been the best father socially, not the best husband in a traditional storybook sense, but he’s been a wonderful provider, he’s always acted in a caring way. I fervently believe he loves us as much as he can. He’s a doctor’s doctor. Medicine is his mistress. In a real way, Craig is a victim of a system that pushed him to excel and to compete from the moment he decided to become a doctor. There’s always been another test and another challenge. He’s insatiable for professional approbation. Traditional social successes don’t have the same import for him. I knew this was the case when I met him, and I knew it when I married him.”